Letsos & Vakros
[2009] FMCAfam 897
•25 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LETSOS & VAKROS | [2009] FMCAfam 897 |
| FAMILY LAW – Parentage testing – credibility of applicant. |
| Evidence Act 1995, s.140 Family Law Act 1975, ss.60CA, 60CC, 64B, 69VA, 69W & 69Y |
| Adam v the Queen (2001) 207 CLR 96 Cousins & Harper & Ors [2007] FAMCA 1135 Duroux & Martin (1993) FLC92-432 F & R (1992) FLC 92-300 F & Z [2005] FMCAfam 394 G v H (1993) FLC 92-380 G & H (1994) FLC 92-504 Harris v. Tippett (1811) 2 Camp. 637 Lee v The Queen (1998) 195 CLR 594 McK & KVO (2001) FLC93-089 Palmer v The Queen [1998] CLR 1 Preston-Jones v Preston-Jones (1951) AC 391 Re H & A (Paternity:Blood Test) (2002) 1 FLR 1145 TNL & CYT (2005) FamCA 77 Tryon & Clutterbuck [2007] FamCA 580 Wren v Emmett Contractors Pty Ltd [1969] 43 ALJR 213 |
| Applicant: | MR LETSOS |
| Respondent: | MS VAKROS |
| File Number: | SYC2710 of 2007 |
| Judgment of: | Kemp FM |
| Hearing dates: | 7 December 2007, 14 February 2008 & 10 November 2008 |
| Date of Last Submission: | 27 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Battley |
ORDERS
Pursuant to section 69W of the Family Law Act 1975, the parties sign all such documents and do all acts and things necessary to undergo an approved parentage DNA testing procedure (“the Procedure”) to be carried out by a certified testing agency as agreed between the parties and failing agreement as nominated by the Applicant, (“the Agency”), in relation to the following:
(a)Mr Letsos, born in 1964;
(b)Ms Vakros; born in 1971; and
(c)[X], born in 2007.
The parties contact the Agency within 7 days to complete all necessary documentation in order for the Procedure to take place.
Pursuant to s.69X of the Family Law Act 1975, the parties and the said child attend upon a registered medical practitioner or pathologist to enable a bodily sample to be taken from them for the Procedure to be carried out by the Agency.
The parties each initially pay half the costs of the Procedure and ensure that their share of the cost is forwarded to the Agency with any documentation duly completed.
The parties ensure they submit to the Procedure within 28 days from the date of these Orders and the respondent mother ensure that the child also submits to the Procedure as advised by the Agency.
If the applicant is the father of the child, the respondent shall reimburse the applicant within 28 days from the date the results become known to the parties, for the applicant’s share of the costs associated with the Procedure and if the applicant is excluded by testing, as the father of the child, the applicant shall reimburse the respondent for his share of the costs associated with the Procedure within 28 days from the date the results become known to the parties.
Both parties’ costs of the application with respect to parentage testing, be reserved.
The matter be adjourned to 14 December 2009 at 9.30am for mention.
IT IS NOTED that publication of this judgment under the pseudonym Letsos & Vakros is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC2710 of 2007
| MR LETSOS |
Applicant
And
| MS VAKROS |
Respondent
REASONS FOR JUDGMENT
Background
This is an application commenced by way of an Amended Application filed 6 September 2007, seeking various interim and final orders. The only order the subject of this hearing is order 2 of the final orders and order 8 of the interim orders to the following effect:
a)“The Respondent and Applicant takes the tests needed to determine the child’s father DNA or maternity test whichever is needed.”
The respondent mother seeks in her Response, filed 27 November 2007, an order that the applicant’s Application be dismissed with an order for her costs. The Response document refers to the Applications filed on 17 April 2007 and 17 August 2007 but for today’s purposes that Response is taken to seek orders as against the Amended Application referred to in paragraph 1 above.
The applicant’s amended application seeks other interim orders referrable to the applicant spending time with the subject child, who is described in paragraph 15 below, and an order concerning the respondent advising the applicant as to the whereabouts of the child. Interim orders 10, 11 and 12 were expressly withdrawn by the applicant. In these circumstances, the paternity test being sought by the applicant is within the context of other parenting orders being sought. The making of such an order is not finally determinative of the proceedings as such.
In these proceedings, Mr Letsos is self represented and the mother was represented by Mr Battley of Counsel.
The applicant relied, after admissibility rulings were made, on the following:-
a)His affidavit sworn 27 March 2007.
b)His affidavit sworn 6 September 2007, the Annexures to which were provided by the applicant as they had not been attached to the Court’s filed or service copy. No objection was taken by
Mr Battley. The applicant’s earlier affidavit of 17 August 2007 was not read, as it appeared to be in almost identical terms.c)The mother’s affidavit sworn 27 November 2007 (excluding paragraph 2) which was tendered as Exhibit 2.
The applicant asserted that he had a further two or three witnesses who would give evidence. No affidavits, however, were filed and served, nor were written statements provided and no such persons attended to give oral evidence.
Mr Battley confirmed that the mother would not be relying on her Affidavit sworn 3 December 2007 which was filed and served in accordance with the Court’s orders made on 28 November 2007. This was the case as the applicant had indicated that he had not received the document and as it was lengthy, he would seek an adjournment to deal with it.
The respondent relies on the following:-
a)Her affidavit sworn 3 July 2007.
b)Her affidavit sworn 27 November 2007.
c)Her affidavit sworn 3 December 2007.
The applicant and respondent were both cross-examined.
The following documents were tendered as exhibits:
EXHIBIT
DESCRIPTION
TENDERED BY
A
Affidavit of the applicant of 22 March 2007
Respondent
B
Annexure E to the applicant’s affidavit of 22 March 2007 filed in the Supreme Court of NSW
Respondent
1
Bundle of documents tendered before Housego FM on 9 July 2007 regarding an adjournment application
Applicant
2
The mother’s affidavit sworn 27 November 2007 (excluding paragraph 2)
Applicant
While the applicant tendered the mother’s affidavit as Exhibit 2, this was done when Mr Battley advised that the mother would not be reading her affidavit and the applicant wished to “cross-examine” her. Subsequently, Mr Battley did read the mother’s subject affidavit together with others and the mother subjected herself to cross-examination by the applicant. The Court does not accept that, in those circumstances, it could be said, as the mother argued (the effect of tender argument) that the applicant had adopted the mother’s case.
On 10 November 2008, when the oral evidence concluded and Mr Battley had made oral submissions, the Court stated that it would provide to the parties certain transcripts of the hearing. A direction was made that Mr Battley would provide a written copy of his submissions made in Court to the applicant and to my associate within 14 days after receipt of the transcripts. The applicant was to file and serve any written submissions within 6 weeks after receipt of the written submissions from Mr Battley. The Court noted that if upon receipt of the applicant’s submissions the Court was of the view that it would benefit from a short reply from the mother, then the Court would make an appropriate direction. The Court forwarded copies of the transcripts to both the applicant and mother in December 2008. The Court did not receive within the time period contemplated any written submissions from either the applicant or the mother, although the mother’s oral submissions were documented in the written transcript provided. The Court wrote to the parties on 7 April 2009 requesting submissions at the parties earliest convenience.
On 3 June 2009, the Court made the following orders in Chambers:
(1)In light of the provision of the transcript in December 2008 pursuant to the orders made on 10 November 2008 (copy attached) and there being no response to the Court’s letter to the parties dated 7 April 2009 (copy attached), the Court will provide a further extension of 30 days from today’s date for any written submissions by the applicant.
(2)Failing the provision of such written submissions by that date, or any application for an extension of time to be made before that date, the Court will then finally determine the matter.
On 6 July 2009, the Court received some 28 pages of written submissions provided by Mr Battley for the mother said to be in “draft” form. This was expanded to some 32 pages of “final” submissions dated 23 July 2009 provided on 27 July 2009. The Court has received no written submissions from the applicant.
The application concerns a female child, namely [X], born to the respondent mother in 2007 (“the subject child”).
The mother, who was born in 1971, concedes that she was in a sexual relationship with the applicant, but says that such relationship concluded on or before 1 February 2006.
The applicant’s position is that he was having sexual relations with the mother up until 23 May 2006.
The relevant time for conception (although no expert or other medical evidence was lead as to this) would appear to have been argued as being between 9 March 2006 and 23 May 2006 for conception given the child’s date of birth. The Court can, take however, judicial notice that the period of normal gestation is about 270 to 280 days see Preston-Jones v Preston-Jones (1951) AC 391. That is between 4 and 14 April 2006.
The applicant, who was born in 1964, is unemployed and lives at K. The applicant gave evidence that he had two other children, one in remission with leukaemia.
After dealing with numerous objections taken to the applicant’s affidavits, the applicant was cross-examined by Mr Battley.
The applicant asserts that he commenced a relationship with the mother, in or about March 2005 and that she moved into his home in May 2005. He says that on 31 January 2006 he asked the mother to move out of his home and she did. However, he says that on
6 February 2006 she moved back in. On 20 February 2006, the applicant asserts he was contacted by a police officer in respect of an Apprehended Violence Order (“AVO”) application taken out at the request of the mother. The applicant says that he was surprised at that as the mother was living with him at that time. The police officer then contacted the mother and subsequently spoke to the applicant who was advised that the mother did not wish the AVO to proceed but wished him to attend Court. The applicant says that he attended the Local Court at Sutherland on 22 February 2006, where the AVO was withdrawn. The withdrawal of the AVO was admitted by the mother. On 28 February 2006, the applicant says that he again asked the mother to leave his home and not to return. Some time after that, the applicant says the mother telephoned him and said to him “you will pay for this you fucking arsehole, you will regret the day you fucken met me, you will suffer, this is sware to you”. The mother denies this conversation. The applicant says that after this he was subsequently arrested and charged with a number of offences including “intimidation”. The applicant says that he was initially refused bail and was then taken to the Local Court at Gosford where bail was also refused. He says he subsequently obtained bail in April 2006, on an application to the Supreme Court of New South Wales.The applicant asserted that in about mid April 2006 he was contacted by the mother who informed him that it was not she who had him placed in detention but the police and that she would write to the police and tell them “to leave us alone”. No evidence of any written correspondence was tendered and the mother denies this conversation.
The applicant further asserted that he had sexual relations with the mother from about 7 April 2006 (although his affidavit stated 7 April 2007 [emphasis added], which the Court accepts, in the light of his oral evidence, was a typographical error) up until 23 May 2006 and in that period he believed that he was the only sexual partner of the mother. The mother said that she had last had sex with the applicant in January 2006 and denied the relationship continued up to 23 May 2006. She further denied the applicant was the father.
The applicant further says that he has a new partner and this relationship commenced after the departure of the mother on or after
23 May 2006.The applicant deposes to a conversation with the mother which he says occurred between June and July 2007 to the following effect:
Mother:“if you don’t drop that fucken bitch you will never see our child”
Applicant:“Ms Vakros, I just want to know if the child is mine, this is why I want the test”
Mother:“The child is yours you fucken arsehole, I slept with no-one since we were together and you can do the maths, stupid, I had the child in January and we stopped sleeping together in late May, work that out and who do you want to know if tis your child if you don’t want to be part of our lives”
Applicant:“Ms Vakros, I have a right to know, just like the child has a right to know who the father is”
Mother:“Go and fuck yourself, I will fight for you to never see my child”
The mother denies the conversation as deposed to above and strangely, the applicant says that he did not form the view that he was the father of the child based on that conversation.
The applicant says that as the child was born in January 2007, he believes that he is the father. He further asserted that “it would be criminal to deny the child’s right to [know] who her father is, it would also be equally criminal to the father to deny the right to know if he is the father of a child”. This belief was contradicted in his facsimile dated 21 March 2007 to the solicitors for the mother in the Supreme Court of New South Wales proceedings wherein he stated “…this clearly shows her vindictiveness and her hatred to me, despite her claiming that I am the father of bastard child, (which I do not believe as your client was quite popular with the men who wanted a quick and one night stand)…”.
A running theme behind the applicant’s allegations against the mother was that she came from a wealthy Greek family on the New South Wales Central Coast who were able to manipulate matters so that criminal charges were unfairly brought against him.
The mother says that the applicant has initiated litigation against her in the Supreme Court of New South Wales and the Local Court of New South Wales at Burwood. She annexes to her affidavit an affidavit sworn by the applicant in the said Supreme Court proceedings and a copy of the transcript of the evidence in the said Local Court proceedings. Those last mentioned proceedings were brought by the applicant as complainant seeking an AVO against the mother and conducted before Magistrate Richardson on 30 October 2007. The mother asserts that the applicant borrowed $150,000.00 from her and has not repaid those monies. These monies were in turn she asserts, borrowed by the mother from her own bank. The mother relies on a copy Deed dated 6 October 2005 referring to this loan arrangement between the applicant and the mother. This loan arrangement did not sit well with Mr Battley’s submission that the applicant’s business had shut down in 2004, prior to the applicant meeting the mother in 2005.
The transcript of the Local Court proceedings at Burwood (which was initially sought to be tendered and was rejected and was subsequently admitted without objection when the mother elected to read affidavits and to subject herself to cross-examination) provided some insight into the background between the parties. The applicant submitted before Magistrate Richardson that he had lost his business, his livelihood and been stabbed, bashed and sexually assaulted and suffered damage arising out of allegations made by the mother. The evidence before the learned Magistrate was consistent with his evidence before this Court, namely that he had had sexual relations with the mother in February 2006 and then later between April and May 2006. Although the applicant says that relations ceased on or about 10 May 2006.
The applicant asserted before Magistrate Richardson that he had suffered 2 heart attacks, been divorced, lost $12.8 million, his waterfront mansion and his family business of some 38 years. He asserted that he was bashed and stabbed whilst in detention at the [P] Correctional Centre and had been taken to [W] Hospital for treatment. He further asserted he was seeing a psychologist some 2-3 times per month. The applicant asserted that because he was denied bail by a Magistrate when dealing with the charges laid against him on the basis of reports made to the police by the mother, his company collapsed. This company had been, he asserted, in the process of building a [business omitted] [at K] and it would appear the applicant asserts that the lenders withdrew their financial support. The applicant asserted that his own father had lost money and his house in supporting this business and the mother herself had put up her unit as security for the loan.
The applicant also asserted in the Local Court at Burwood that the mother had made a complaint against him on 23 May 2006, that he had threatened to rape and kill her and her family. On 1 June 2006, it would appear on the applicant’s evidence that an interim AVO was issued by the Local Court at Balmain and that he had made some
4 applications to have that order discharged.The applicant further asserted before Magistrate Richardson that there was a CD of a conversation he had with the mother wherein he had asked the mother what power she had to have him locked up and she had replied “it’s called “the power of the pussy”. Any Magistrate, any Judge and the Police will believe a woman over a man”. This CD was referred to by the applicant before me, however it was never produced nor was it sought to be introduced into evidence. The mother denied that she had said these words.
The applicant asserted before Magistrate Richardson that he believed, without doubt, that the subject child was his child. However, the applicant also admitted that his memory was not good as he had been hospitalised in June, July and September 2007.
The applicant submitted that the subject child may or may not be his. However, if the child was his, he said he had the right and so had the child to know who the father was. He further asserted “if I am not the child’s father, I don’t care who it is. It could be John Howard, it could be anybody; I don’t care. If I am the father, Your Honour, I have every legal, ethical and moral right to know that”.
The affidavit of the applicant in the Supreme Court proceedings claimed that he had a cross-claim against the mother in the order of $975,000.00, well in excess of the jurisdiction of the District Court of New South Wales, where it would appear the mother had commenced proceedings against the applicant. This figure increased on the applicant’s evidence in February 2008 to in the order of $2.8 million.
The Local Court proceedings before Magistrate Richardson appear to have been adjourned from 30 October 2007 to 6 December 2007. Mr Battley appeared for the mother in those proceedings and asked the applicant a number of questions concerning them. Mr Battley put to the applicant that he could not recall what he had said to Magistrate Richardson the day before. The applicant asserted that he could not clearly remember what happened in Court and gave as his explanation that in the last 4 days he had been taking morphine for kidney stones and spent a number of hours in hospital and, indeed, 2 hours in the early morning of 7 December 2007. Nevertheless, his evidence was the he was having difficulty remembering the events of yesterday (6 December 2007) because he had received 30 mg of morphine. This caused the Court some concern as to the reliability of the evidence that the applicant was then giving. This was raised directly with Mr Battley who put some more questions to the applicant. The applicant then denied that he was currently on morphine. His evidence was further that he had been receiving morphine a number of times over the last year to treat painful kidney stones but had not taken morphine in December 2007 and last took it in November 2007. Further questioning concerning the applicant taking morphine, revealed that the applicant had difficulty remembering. Mr Battley asked whether the applicant had a problem with his memory and the applicant responded “sometimes”.
The applicant was extensively cross-examined as to the various hospitals that he had attended to receive treatment and morphine. Whilst the evidence was that the applicant had spoken to a Doctor, he said that he was not in fact treated. The applicant’s evidence was that he had a memory problem. He further admitted to not being able to think straight when upset and that he was upset when cross-examined by Mr Battley. He could not recall when he last took morphine. His evidence in February 2008 was that he could not remember what he had told this Court in December 2007 concerning his taking of morphine. The applicant stating at one point “I can’t remember what I ate yesterday”.
The applicant stated that in February 2008 he was seeing a counsellor every week through a personal support program.
The applicant’s cross-examination continued with respect to the apprehended violence proceedings before Magistrate Richardson, which were apparently dismissed on 6 December 2007. The applicant indicated that he had or was in the process of lodging an appeal against that dismissal, accusing the mother of briefing expensive legal counsel to pervert the course of justice. His allegations against the mother in those proceedings included the following:
a)That she was guilty of a number of crimes;
b)That she was guilty of perjury;
c)That she swore a false affidavit;
d)That she was guilty of extortion and blackmail and that she was guilty of perverting the course of justice;
e)That she manipulated the New South Wales justice system;
f)That she had misled, deceived and manipulated the New South Wales Police Service to have him incarcerated;
g)That her family had paid money ($2,000.00) to have him assaulted;
h)That he had referred a number of the above allegations to the New South Wales Attorney General’s Department and the New South Wales Director of Public Prosecutions was investigating those matters.
The applicant also stated that he had appeared in the Family Court at Parramatta some 87 times in 21 months “trying to have equal rights for fathers, where a judge believed that the Family Court believed that its a woman, a mother is a better parent than a father”.
The applicant asserted in the Local Court at Burwood before Magistrate Richardson the following:
“…See in the Family Court, a woman goes in there and makes all these allegations and they stop a multi-million dollar company from trading. When we go to sue her for damages, because we have damages against her, she’s a woman of straw, she’s got nothing. So what happens to my company, gone. What happens to my children, lost their future. And what does the Family Court of Australia say, sorry. Just like the Criminal Courts of Appeal in Liverpool Street said to me, “We’re sorry Mr Letsos, the justice system failed you.””
The applicant was asked
“…and do you tell His Honour did the Criminal Courts apologise to you, if I understand your evidence correctly …. that you say the Family Court of Australia also apologised?”
The applicant answered
“No I didn’t – I didn’t say the Family Court was – that’s the Family Court. Chief Justice Nicholson who was the Chief Justice of Australia apologised to me.”
The applicant was asked
“Did he do that in writing?”
The applicant answered
“You don’t think he’s that stupid, do you?”
Further, in the evidence before Magistrate Richardson, the applicant in asserting his fear of the mother stated:
“…I now have one – I am now seeking to get a paternity order against the child that she bears. That’s serious’ for a mother. You try to take a child off a mother, she will rip your eyeballs out. That’s number 1. Number 2, I am taking legal action against her for damages that I have suffered including my family. Number 3, she hates my partner. Number 4, she says that Asians sell children, she doesn’t want her child nowhere near the “Asian bitch” in her words. Now when all – you put all those together and this person has already manipulated the New South Wales Police Service, manipulated the Court, manipulated the prosecution, manipulated everybody, she ultimately proven she is a manipulator...”
The evidence is that the applicant acknowledged that Magistrate Richardson had determined his application as frivolous and had ordered costs against him.
On 10 November 2008, the applicant was given leave to adduce some further evidence as to recent events. This evidence was that the applicant asserted he had been having sexual relations with the mother some 6-8 weeks prior to that date. This was denied by the mother.
The Court accepts that the applicant has displayed some malice towards the mother stating “anything that involves you, I hate so bad”. But that does not impact on his assertions in respect of the child.
In April 2006, the applicant asserted that the mother had sent him a picture of her vagina on his mobile phone. The mother acknowledged that she did do this but could not recall the date.
The mother visited the applicant when he was in a correctional centre. She attended there with the applicant’s father, mother and someone called “B”. She also said that the applicant had tried to touch her at that time but she did not say that she did not consent to that.
The mother’s evidence was that she did speak and write (by way of response) when he was in the correctional centre.
The mother was not convincing in her answer to the applicant’s question whether they had had sexual intercourse within the last
8 weeks (prior to 10 November 2008) when she said “I don’t think so”.The mother knew of the applicant’s address at Property K and gave evidence of going there within the last 8 weeks (prior to 10 November 2008).
The mother’s evidence was that she was not intimate with the applicant and said “so get over it”. She also said “I am in a loving relationship, I wouldn’t cheat on my partner”, however, she then answered the applicant’s question “did you give me a blowjob in the last 8 weeks?”, with the answer “yes”. The mother did not deny that she had had contact with the applicant and strangely in answer to a question “No, no have you rang me?”, she responded: “and we have had sex”. She, however, did not know the dates for that. Further, she clearly acknowledged that she had had sex with the applicant in 2008.
The mother’s evidence was not convincing when the applicant asked her: “Did we have sexual intercourse more than once over the last 8 weeks?”. She responded “You tried to have sex with me”. Subsequently, she stated that she had been having oral sex with the applicant in that period, notwithstanding her assertion that: “I haven’t been seeing you”. She was unresponsive to the applicant’s line of questioning when he asked “[in the last 8 weeks] did you sleep over at my office one night and went to work the next day?” when she responded; “No…. because you said your office isn’t a residence”.
The mother’s evidence was that she had only ever been involved with AVO’s and Courts with the applicant. Her evidence was that an AVO applied for by the Police, at her request, was withdrawn as she said that she had agreed to the applicant’s request that she withdraw it.
The mother gave evidence at the applicant’s Supreme Court Bail Application when the applicant was successful in obtaining bail.
The mother acknowledged that she knew who the father of the subject child was but did not depose to his identity.
The applicant asked the mother “to your knowledge, is it true that your ex-husband Mr C advised me that I am the father of your child?” Her answer was: “I don’t know what you two talked about”.
The applicant asked the mother “Whether she had had sexual relations with him after he was released from detention on 5 April 2006?” Her answer was: “I didn’t have sex with you after you were released. Not after you had taped me while we were in a relationship”. The mother under some further questioning from the applicant said “I don’t recall dates. I don’t recall”.
However, the one critical question that the applicant asked the mother, namely “When was the last time that we had sexual intercourse in 2006?” was given the answer “I don’t recall”. This was a high watermark for the applicant. The mother then gave further evidence that she recalled their relationship ended in January 2006. Her evidence was that no sexual intercourse with the applicant occurred after that date. That answer was inconsistent with her answer that she did not have sex with the applicant after he was released from detention in April 2006. She did not recall whether there was an occasion of sexual intercourse on 19 February 2006. That was again inconsistent with her subsequent denial that sexual intercourse had continued after 1 February 2006. The applicant put to her that on
19 February 2006 the parties were in a sexual intercourse relationship and her response was “If that is what you believe”.The applicant put to the mother that he had had a telephone conversation some 8 weeks before 10 November 2008 wherein he said she said “Why do you want to know if you are the father if you don’t love me?” Her answer was that she recalled a telephone conversation but did not recall saying that.
The applicant’s evidence was that he believed he was the father based on conversations with the mother and it would appear on his assertion in cross-examination of the mother, on a conversation with her
ex-husband and on his belief that the parties continued in a sexual relationship from 7 April 2006 (after his release from detention) to
23 May 2006. His belief must be seen against the whole background of his evidence and not simply disregarded by his use of inexact descriptions such as “I have come here to find out if that child is mine” or “The whole purpose…. was to have evidence so that you can see if there was evidence that I’ve been living with this person in an intimate relationship whether it’s a possibility that I could be the father”. The applicant was self-represented and highly emotional and the dissection of his evidence, without regard to its totality, is of little assistance.Notwithstanding assertions by the applicant, there was/were no:
a)Subpoenaed documents from hospitals or doctors concerning the birth of the child.
b)Copy birth certificate for the child.
c)Subpoenaed documents from any of the Correctional Centres attended by the applicant regarding contact between himself and the mother.
d)Copy correspondence said to have been written between the applicant and the mother concerning communications between them while the applicant was in detention.
e)CCTV recording of the mother at the applicant’s address at Property K.
f)DVD recording allegedly taken of the applicant and the mother having sexual intercourse on or about 19 February 2006 said to have been delivered by the mother to the Police at some time in 2006.
g)Subpoenaed transcripts of the proceedings in the Local Court in Sutherland where the mother gave evidence.
h)Evidence of recordings of the mother on the telephone, CCTV or video.
i)Evidence of any written statements allegedly given by the mother to the Police concerning her having sexual intercourse with the applicant in April 2006.
j)Affidavit evidence by the mother’s ex-husband, Mr C, as to any conversations with the applicant as asserted by the applicant wherein he had advised the applicant that the applicant was the father of the child.
The Court accepts that there had been adjournments to enable the applicant to produce evidence, which was not in fact produced. There are witnesses, the applicant wished to call, who were not called. The Court was also notified by the applicant that he would be seeking to have issued a number of subpoenas to have documents produced. It would appear that the applicant did not issue subpoenas. Further, the Court ordered that any audio or visual material that the applicant said he had in his possession and that he intended to rely on, be served on the mother by 3 December 2007. Mr Battley submitted that no such material had ever been served. No such material was sought to be tendered.
The Law
Parentage is now recognised as a medical and not a legal issue and as stated by Lord Justice Thorpe in the English Court of Appeal Re H & A (Paternity:Blood Test) (2002) 1 FLR 1145 referred to by the Full Court of the Family Court of Australia in TNL & CYT (2005) FamCA 77:
“As science has hastened on and as more and more children are born out of marriage, it seems to me that the paternity of any child is to be established by science and not by a legal presumption or inference”
Section 69W of the Family Law Act 1975 (“the Act”) confers jurisdiction to order a medical parentage test as follows:
(1) If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order ) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child.
(2) A court may make a parentage testing order:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) an independent children's lawyer representing the child's interests under an order made under section 68L.
(3) A parentage testing order may be made in relation to:
(a) the child; or
(b) a person known to be the mother of the child; or
(c) any other person, if the court is of the opinion that, if the parentage testing procedure were to be carried out in relation to the person, the information that could be obtained might assist in determining the parentage of the child.
(4) A parentage testing order may be made subject to terms and conditions.
(5) This section does not affect the generality of section 69V.
The use of the word ‘may’ in s.69W indicates that the Court’s discretion is unfettered: In the Marriage ofF and R (1992) 15 FamLR 533 at 537 per Butler J; and F & Z [2005] FMCAfam 394 at [99] per FM Walters.
However, “[T]he exercise of an unfettered discretion must be dealt with according to the ordinary rules of justice and fairness between the parties”: In the Marriage of F and R (1992) 15 FamLR 533 at 538 per Butler J. The Court has set out some general principles as to how the discretion might be exercised, including the matters set out in the following paragraphs.
There must be substantive proceedings under the Act
The substantive proceedings, “which are a necessary precondition, may, for example, involve the matter of child maintenance, custody or access in which the question of parentage is an issue”: Duroux & Martin (1993) FLC 92-432 per Ellis, Finn and Joske JJ.
This requirement would, however, be satisfied “where the only pending application before the Court is an application brought pursuant to the provisions of the Child Support Assessment Act (CSAA)”: F & Z [2005]; Duroux & Martin (1993) FLC 92-432.
The Court, however, has had specific regard to what Justice Coleman said in Cousins & Harper & Ors [2007] FAMCA 1135, namely:
“Quite apart from the fact that there would be no point unless parentage was a question in issue in the substantive proceedings, parentage testing is obtrusive and subjecting children to parentage testing procedures, however innocuous or benign they may be, is not something that a Court acting in the best interests of the welfare of children would lightly condone”.
The applicant here seeks the parentage test in the context of proceedings seeking other parenting orders.
There must be evidence/circumstances which places the parentage of the child in doubt in the applicant’s mind; and the applicant’s doubt must be honest, bona fide, and reasonable:
The above test was formulated by Justice Butler in F & R (1992) FLC 92-300 and was approved as the correct approach by the Full Court in Duroux & Martin (1993) FLC 92-432. His Honour stated:
“An objective test is not to be applied, for the evidence in such applications is seldom (if ever) sufficient to enable the Court to come to any objective conclusion, and if it were, parentage testing orders would not be necessary, but the Court will objectively assess the circumstances giving rise to the applicant’s belief”.
The applicant’s doubt, however, cannot be “disordered” or “affected by malice or other extraneous considerations” so as to lead the Court to conclude that such doubt is obviously and objectively, unreasonable. See FM Walters in F & Z [2005] FMCAfam 394.
Inconsistencies in evidence should not be determinative so as to deny an order for parentage testing
As the Full Court in Duroux & Martin (1993) FLC 92-432 states:
“Experience shows that human recollection is frequently inaccurate in relation to matters of this nature, particularly when the events alleged took place a considerable time ago. This approach is consistent with the view recently expressed by this Court that paternity should fundamentally be regarded as a medical rather than legal issue”:
The paramountcy principle
The paramountcy principle (now contained in s.60CA) applies where the substantive proceedings relate to an application for parenting orders, but does not apply where the application before the court is an application for child maintenance or child support orders only. In the latter case, the welfare or best interests of the child is not the paramount factor, but it is a “relevant (and … extremely important) factor”: Duroux & Martin (1993) 116 FLR 141 per Ellis, Finn and Joske JJ; F & Z [2005] FMCAfam 394 per Walters FM.
Where the substantive proceedings relate to an application for parenting orders:
“The principle to be applied is that the welfare of the child is paramount. In the long and short term a child has a distinct and important interest in knowing its paternity. Reasons include inheritance and maintenance rights, but more importantly, there is the human reason of identity. Modern thinking is firmly of the view that a child should know of its parentage and that everything should be done to make the knowledge available to a child. Without this knowledge, the child’s personal sense of identity is in doubt and never resolved, leaving confusion or doubt as a lasting heritage”: In the Marriage of F & R (1992) 15 FamLR 533.
In Tryon & Clutterbuck [2007] FamCA 580, Justice Coleman considered that the ordering or not ordering of a DNA parentage test under s.69W of the Act was, itself, a parenting order.
At paragraph 26 of his judgment, His Honour stated:
“It is reasonably apparent as a matter of statutory construction that an order under s 69W is, in fact, a parenting order as that term is known or to be understood within the context of the Act.”
A parenting order, as broadly defined under s.64B(2)(i) of the Act, may deal with:
“…any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.”
At paragraph 30 of his judgment, His Honour stated:
It is tolerably clear that the paternity of a child is an aspect of the welfare of a child. That is to say who is, or is not, a child’s biological father as a matter of commonsense, appears to be capable of being an aspect of the welfare of that child
Once a parenting order is to be made, s.60CA of the Act is enlivened. Section 60CA states:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Any failure by a party to comply with an order for DNA Parentage testing, gives rise not to a finding of a contravention in the sense of Part 13 of the Act but rather a failure to carry out an order.
Section 69Y of the Act states:
(1) If a person is 18 or over contravenes a parentage testing order or an order under section 69X, the person is not liable to any penalty in relation to the contravention.
(2) The Court may draw such inferences from the contravention as appear just in the circumstances.
Any inference the Court draws is, however, not automatic and is to be drawn from all of the evidence before it.
The drawing of any inference is one matter the Court can consider, after receiving evidence, in the question of the making of any parentage declaration under s.69VA of the Act. That section states:
As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the Court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
As Justice Mullane said in McK & KVO (2001) FLC 93-089, the above section is the only express power to make a parentage declaration and as such it is not a freestanding power, but dependent upon there being proceedings before the Court in which the child’s parentage is an issue.
Accordingly, notwithstanding any concerns over the applicant’s evidence, the Court must have regard to the best interests of the child. Pursuant to s.69W(2) of the Act, an order for parentage testing could be made on application by an independent children’s lawyer representing the child pursuant to s.68L of the Act or by the Court on its own initiative.
The mother submits that the applicant’s case fails based on a number of principles. First, the mother submits that the applicant does not hold an honest bona fide reasonable doubt that he is the father of the child within the principle in Duroux v Martin (1993) FLC 92-432. Secondly, that the applicant’s credibility should not be accepted and in particular in light of his prior inconsistent statements (see the High Court in Lee v The Queen (1998) 195 CLR 594 and Adam v the Queen (2001) 207 CLR 96) and thirdly that the applicant had failed to adduce crucial evidence and finally that the Court should not grant the relief sought in accordance with the principles in Tryon & Clutterbuck [2007] FamCA 580.
Issues of credit
The mother submitted that the testimony of the applicant was stained by criminal accusations, malicious exaggeration, vindictiveness, irrational attitudes and inconsistency and was an abuse of the Court’s process.
The applicant accuses the mother of being guilty of the criminal offences of extortion, blackmail, perverting the course of justice, swearing an affidavit knowing it to be false, and perjury, yet he provided no foundation to ground these allegations, providing no documentary evidence, and calling no witness to support his assertions.
In relation to the applicant’s claimed vindictiveness, the mother says he said to her on 11 September 2007 in a telephone conversation the following words: “I can crucify you but you can’t crucify me”: The applicant initially said he could not recall saying these words and then he denied saying them.
The mother says that the following two statements made by the applicant were entirely contradictory but were made within a very short period (some 6 days) of each other:
a)“[D]espite her claiming that I am the father of her bastard child (which I do not believe as your client was quite popular with the men who wanted a quick and one-night stand) …”.
b)“[A]s I trully [sic] believe … that I the applicant is the father of this child”.
The first statement set out above was included in a letter from the applicant to the mother’s then solicitor, Mrs Julia Slape of Conditsis & Associates, which was attached as Annexure E to the applicant’s affidavit filed in the Supreme Court of NSW proceedings in support of an application for the transfer of proceedings from the District Court to the Supreme Court. The purpose of annexing that letter was to evidence the applicant’s provision of a copy of a summons and affidavit and it would appear to further support an application for costs in the Supreme Court. The affidavit did not depose to the accuracy of the facts stated in that letter, save that the affidavit deposed to the applicant faxing the said letter. This is to be seen in contrast to the second statement, which was asserted as the applicant’s belief in his affidavit filed in these proceedings. The second statement is relevant to the Court’s determination in this matter. The first statement was not in any way relevant to the Supreme Court’s determination of a transfer application.
The Court accepts that the applicant blames the mother for allegedly manipulating the Courts, “bringing the NSW Police Service to its knees”, being gaoled for four weeks, being a member of an allegedly corrupt family on the Central Coast whereby her father allegedly paid $2,000.00 to unnamed people to allegedly stab, bash and sexually assault the applicant, committing very serious criminal offences for which she is yet to be charged, including the alleged collapse of his family’s 38-year-old, multi-million-dollar business, demanding the return of the $150,000.00 that he allegedly borrowed from her, not agreeing to give him $975,000.00 that he sought in “compensation”, being allegedly promiscuous, and exploiting her gender’s alleged unfair sexual-powers: “It’s called the power of the pussy.”
Mr Battley of Counsel referred the Court to a number of authorities considering the issue as to how a witness’ credit is to be assessed. In particular, he referred to the following extracts from the decision of Windeyer J in Wren v Emmett Contractors Pty Ltd [1969] 43 ALJR 213 at 221:-
“Questions asked of a witness about his conduct in some matter, merely collateral to facts in issue, are permitted if they go to his credit. That is not because conduct on which he is thus questioned is alleged not to redound to his credit. It is because, if what is insinuated is admitted by him, that may suggest that he is not a man to be believed upon his oath. It is not that he is said to be a discreditable person: it is that, because of this, his testimony may be incredible.
“When lawyers speak of conduct or character as going to the credit of a witness, they use the word ‘credit’ in relation to credibility, his veracity, not in the sense of his worthiness. This comes from the way in which the earliest writers on the law of evidence spoke of ‘the credit of the oath’ of a man. The expression was first used in relation to persons who, by the law of earlier times, were wholly disqualified as witnesses because their testimony was suspect. Thus it was that Chief Baron Gilbert – whose book on evidence was published in 1754, nearly thirty years after his death – speaking of the disability then existing of a convicted person to give evidence, said that it was because ‘the credit of his oath is overbalanced by the stain of his iniquity’.”
[…]
“In assessing the testimony of any witness in any case, it is relevant to know whether he has any interest or concern in the outcome of the case which might make him not impartial.
[…]
“When his testimony is being weighed, it is relevant to know the nature and extent of his interest, how the result of the case will affect him and what for him is at stake. A passage in Phipson on Evidence, 10th ed., par. 1548, is apposite: ‘The credibility of a witness depends upon his knowledge of the facts, his intelligence, his disinterestedness, his integrity, his veracity. Proportioned to these is the degree of credit his testimony deserves from the court or jury.
[…]
“To quote from the old work Starkie on Evidence, 3rd ed. (1842), vol. I, p. 190, facts are relevant which show ‘the motives and temper of a witness in the particular transaction’.”
Mr Battley also referred to the following extract from the decision of McHugh J in Palmer v The Queen [1998] CLR 1 at 22:
“The line between evidence relevant to credit and evidence relevant to a fact-in-issue is often indistinct and unhelpful. The probability of testimonial evidence being true cannot be isolated from the credibility of the witness who gives that evidence except in those cases where other evidence confirms its truth either wholly or partly. Furthermore, the conclusions drawn from that evidence are necessarily dependent on the credibility of the deponent.
“Indeed, in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where, as in the present case, the witness is a participant in the very facts-in-issue or the only eyewitness to them (42).”
In addition to the paragraphs quoted above, His Honour Justice Windeyer, in the case referred to above, also quoted from the decision of Lawrence J in Harris v. Tippett (1811) 2 Camp. 637 as follows:
“I will permit questions to be put to a witness as to any improper conduct of which he may have been guilty, for the purpose of trying his credit”: but, if those questions were “entirely collateral” to the issue “you must take his answer”.
Mr Battley submitted that the Court cannot believe the applicant because he:
a)Deposes to one core-belief in one Court and to the opposite core-belief in another Court (that is, that he believes he is the child’s father in this Court but that he is not the child’s father in the Supreme Court of New South Wales). The Court repeats paragraph 91 above relevant to this submission.
b)Says he is the cousin of the NSW Attorney-General in one Court and says he is not the cousin of the Attorney in another Court.
c)Deposes to assertions that the mother will be charged with a string of very serious criminal offences.
d)Blames the mother for being gaoled.
e)Blames the mother for the collapse of his allegedly multi-million dollar family business.
f)Says that he attended upon various hospitals for morphine injections, provides details of those hospitals, and then subsequently denies that he said he took morphine.
g)Says that he will “crucify” the mother.
h)Says that he “hates” the mother.
Mr Battley invites the Court to find that the applicant’s testimony is so “stained” by malice that he cannot be believed. He further submits that the applicant’s credibility is of “such crucial importance” and is “decisive of the facts-in-issue”, that if the Court accepts that it cannot believe him, then it flows that his application should be dismissed.
While the Court accepts that the applicant was not an impressive witness, the Court also formed the view that the mother was not entirely forthcoming and responsive to the applicant’s questioning, which the Court accepts was largely ineffectual due to the applicant being self-represented, lacking any subjectivity, and affected by the surrounding relationship issues between himself and the mother.
The Court is of the view that even if it accepted that it could not believe the evidence of the applicant as to the matters set out in paragraph 96 above, it is not of the view that his evidence as to his beliefs concerning doubts as to the parentage of the child should not be accepted. This is particularly the case, as the evidence before the Court is consistent with the applicant’s continued assertion, not only before this Court but before the Local Court of NSW, that the subject child may be his. Further, the evidence of the mother itself is so uncertain and unsatisfactory as to lead the Court to the view that the applicant’s subjective doubt is reasonably held.
The mother also submits that there is a complete paucity of evidence within the principles set out in G v H (1993) FLC 92-380 at p. 79,937 where Strauss J. quoted the trial judge as saying:
“[T]here was a total dearth of evidence produced by the applicant which could go towards establishing with any degree of precision the date of conception. This amounts to a very serious lacuna in the applicant’s case.”
There is no evidence before the Court as to vaginal intercourse, unprotected intercourse, ejaculation, fertility (his), or the mother’s medical records.
The lack of material before the Court relevant to the matters in paragraph 101, would appear to be a product of how the applicant conducted these proceedings. While the Court accepts that the mother is not obligated to provide such material and it is the applicant who bears the onus, the Court is also of the view that it is for that reason that the test has been formulated as it has. The applicant does not have to establish, on the balance of probabilities, that he is the father, only that he has an honest, bona fide, and reasonable doubt as to that matter. In light of the evidence before it, and notwithstanding the detailed and considered submissions of Mr Battley, the Court accepts that the applicant has such a doubt and that this doubt, on the evidence is reasonably held. Section 140(2) of the Evidence Act 1995 (“the Evidence Act”) does not prescribe in its use of the term “gravity of the matters alleged” in sub-section 2, anything other than that factor is one which the Court must take into account, together with others, in determining whether it is so satisfied on the balance of probabilities. The Court does not accept that the issue of paternity is, in itself, a “grave matter” see the High Court’s discussion in G & H (1994) FLC 92-504, but if it was, the Court considers that taking that into account, it would nevertheless be so satisfied pursuant to s.140(1) of the Evidence Act.
Mr Battley made an interesting argument based on a submission that the applicant’s letter to the mother’s former solicitors, being Annexure E to his affidavit filed in the Supreme Court of NSW and which relevantly stated:
“[D]espite her claiming that I am the father of her bastard child (which I do not believe as your client was quite popular with the men who wanted a quick and one-night stand) …”
was a prior inconsistent statement within the statutory definition provided under the Evidence Act as follows:
prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness
and
previous representation means a representation made otherwise than in the course of giving evidence in the proceedings in which evidence of the representation is sought to be adduced.
Mr Battley referred the Court to two case-authorities which he said were apposite, namely Lee v The Queen [1998] 195 CLR 594 and Adam v The Queen [2001] 207 CLR 96, and set out in his submissions the following quotations;
a)In Lee’s case,
“39. At common law, a previous inconsistent statement put to a witness was evidence only of the fact that the witness had made an inconsistent statement; it was not evidence of the truth of the contents of that earlier statement”, per Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ at p. 603.
b)In Adam’s case,
“37. …But that difference brought about by s.60 [of the Evidence Act 1995] was one of the significant alterations in the rules of evidence that the Act was intended to effect. No longer were tribunals of fact to be asked to treat evidence of prior inconsistent statements as evidence that showed no more than that the witness may not be reliable. The prior inconsistent statements were to be taken as evidence of their truth”, per Gleeson CJ, McHugh, Kirby and Hayne JJ at p. 109.
and argued that there was no issue that the applicant’s belief, as deposed to in his affidavit filed in the Supreme Court of New South Wales, was a prior inconsistent statement, and as such, the Court was bound to accept that the applicant’s true belief was that he was not the father of the child. The representation made by the applicant was that he did not believe the claim being made by the applicant that he was the father of the child. If Mr Battley asserts that this representation is to be taken as evidence of its truth, then it is also evidence that the mother claimed that the applicant was the father. This can only support an argument that any doubt in the applicant’s mind is otherwise reasonable.
Mr Battley submits that the Court cannot consider the provisions of ss.60CA, 60CC and 65AA, as the applicant has provided no evidence to facilitate such consideration. The Application, he submits, ipso facto, must fail. This, however, does not relieve the Court of considering those provisions, which are mandatory rather than discretionary.
Primary considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) which are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this regard the application before the Court is for the issue of the applicant’s paternity to be determined by the applicant, the mother and the child undergoing a relatively simple, inexpensive and effective DNA test to determine that issue once and for all. If the order is not made the subject child may be denied the benefit of a meaningful relationship with the applicant, if he is established to be the biological father. There is no evidence before the Court as to the impact on the relationship between the child and any other person the child may regard as her father. The applicant has not been a member of the child’s family since the child’s birth. The making of the order will not impact on the relationship between the child and the mother. While the evidence indicates a high degree of animosity between the applicant and the mother, the Court is not satisfied on the material before it that there is any need to protect the subject child from any physical or psychological harm or from being subjected to or exposed to abuse neglect or family violence. If the DNA test shows the applicant is not the father that will bring clarification and closure to any ongoing issues concerning the child which might potentially expose the child to such risks. If the DNA test shows the applicant is the father then similarly the potential for such risk factors would appear also to be reduced.
Additional considerations
The Court must have regard to each of the ‘additional considerations’ under s.60CC(3) of the Act separately, which are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
This is not relevant in these proceedings.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
The mother’s evidence was that the applicant has not had any relationship with the child. The ordering of a DNA test would not affect the child’s relationship with the mother. The Court accepts that a child would have an interest in knowing who his or her father is.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother’s evidence was that she was not willing to encourage any relationship between the child and the applicant.
The applicant’s position could not be tested as it was dependent upon the DNA test, if ordered, showing him to be the biological father.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is no evidence that the making of an order for a DNA test will adversely affect the child’s circumstances and her relationship with the mother. An order more likely than not will support the child’s right to know who her biological father is.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There is no evidence before the Court relevant to this matter.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
There is no issue that the mother is otherwise providing for the care of the child. The issue is whether the applicant has such capacity. That issue has not been fully ventilated, nor could it on an application of this nature. If the DNA test is ordered and the applicant is shown to be the biological father, then issues as to his capacity would need to be further investigated.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
There are no other matters relevant to the Court’s determination with respect to this child under this factor.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to this child.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The Court is concerned that the mother’s attitude in opposing a DNA test is not on its face child focused. The Court accepts that this child has an interest in knowing who her parents are, and this interest can extend beyond simply a knowledge of the parties medical histories which may impact on the child and into matters such as financial support, inheritance and other factors.
(j) any family violence involving the child or a member of the child's family;
This factor is not applicable to this child.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
The evidence is unclear. There appears to have been an AVO made against the applicant, which the applicant was unsuccessful at seeking to discharge. There is also evidence that the applicant was unsuccessful in obtaining an AVO against the mother. The balance of the evidence as to criminal proceedings involving both the applicant and the mother is, to say the least, confusing. In light of that, the Court gives this factor no weight.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court finds that, as this is an interim hearing, this factor must be assessed in this light. Whilst the relief sought is final in nature, the Court accepts that if the mother does not comply with the order that is one matter that the Court can consider in any further proceedings. However, if the parties comply with the DNA testing and the applicant is shown not to be the biological father in view of the fact that he has had no relationship with the child then that is likely to bring an end to further parenting proceedings.
(m) any other fact or circumstance that the court thinks is relevant
This is not a matter where a family report would otherwise assist the Court at this stage of the proceedings.
While the evidence of sexual intercourse is not satisfactory, the mother does not deny that she engaged in sexual intercourse with the applicant but her evidence as to when that intercourse ceased is entirely up in the air. The applicant, on the other hand, asserted that such intercourse continued from at least 6 February 2006 and from 7 April 2006 up until 23 May 2006. That was at a time relevant to the child’s conception given that the child was born on 9 January 2007. The Court is of the view that, in the circumstances, a DNA test should be ordered to determine whether the applicant is the biological father of the child.
Matters in ss.60CC(4) & (4A):
The Court must, without limiting its consideration of the factors in s.60CC(3)(c) and (i) of the Act, consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (and in the case where the child’s parents have separated, having regard to the events and circumstances since separation) and in particular the Court must consider the matters set out below:
(a) [The extent to which each of the child’s parents] has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and
(b) [The extent to which each of the child’s parents] has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and
(c) [The extent to which each of the child’s parents] has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
None of the above factors are relevant given the status of these proceedings and the history of the matter between the parties. The mother’s position is that the applicant is not the father of the child and has had no relationship with the child. The applicant asserts he has a bona fide and a reasonable doubt as to whether he is the father and wishes to obtain the paternity test to resolve that doubt.
The Court is of the view that the applicant satisfies the test that his doubt as to whether he is the father of the subject child is honest, bona fide and reasonable in all the circumstances of the matter and given the nature of the DNA test and the consideration as to the best interests of the child in knowing if the applicant is her biological father the Court is of the view that orders should be made pursuant to s.69W to enable that paternity testing procedure to be carried out. The Court will so order.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Kemp FM
Associate: Joanne Balson
Date: 25 August 2009
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